Law & Technology

I am teaching a seminar on law and technology next semester, and I’m looking for a book or an article that addresses–at a relatively high level of generality–the disruptive impact of technological change on doctrine. (Or perhaps an excellent case study of how this occurred in a particular area). Any suggestions would be most welcome.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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You might find some ideas and references here, an online discussion by various experts on “human autonomy, technology, and law” held at Jurisdynamics last year (Feb. 2–March 5, 2009): http://techtheory.blogspot.com/

The Introduction to Lessig’s Free Culture talks about the Causby case, and the change in property law (takings doctrine, specifically) wrought by the advent of airplane technology. (The whole book is available on line as a pdf, here: http://www.free-culture.cc/freeculture.pdf ) Even if this isn’t the best reading for it, it seems like a good possibility – the disruptions in doctrine brought by the advent of widespread airplane use. ( I suppose many questions arose, in a similar vein, with the advent of widespread train use.)

Joe Miller’s reference inspired me to find something specific, so I’ll add this, which has a nice comparative U.S./E.U. dimension to its discussion: Bix, Brian and Winn, Jane K., “Diverging Perspectives on Electronic Contracting in the U.S. And the E.U.,” Cleveland State Law Review, Vol. 54, pp. 175-190, 2006; Minnesota Legal Studies Research Paper No. 06-15. Available at SSRN: http://ssrn.com/abstract=893144

Here’s the abstract:

“Electronic Contracting – understood broadly to include both the Internet downloading of free or purchased software and the use of rolling contracts (shrink-wrap or terms in the box) in the sale of computers or the lease of software – has raised problems, based in part on the novelty of the transactional forms, and in part on the now-standard issue of unread terms in standardized contracts. This article, part of a conference relating to the legal regulation of new property and new technologies, offers an overview of the distinctly different approaches to Electronic Contracting of the U.S. and the European Union. The American legal system has tried, at times awkwardly, to fit the new transactions into existing doctrinal categories, leaving protection of consumers primarily to market mechanisms. The E.U. has responded through significant governmental intervention, at least for consumer contracts: expressing requiring some terms in consumer transactions, while prohibiting many others.”

I’m not sure I have the solution you’re looking for, but for my Internet Law class, where I assemble my own materials, I assign excerpts from two pieces that talk about a little bit of legal doctrine, but at a generally high level: Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207, 207-210; and Orin S. Kerr, Seeing It Both Ways, Legal Affairs, July-Aug. 2003. I also like to assign the discussion from H.L.A. Hart, The Concept of Law 121-32 (Oxford Univ. Press 1961), of the “open texture” of law, because it makes the point about the potential for changed circumstances to make interpretation of a statute difficult without even referencing the Internet — you can talk about whether ambulances, toy motor cars, mopeds, etc. (some of which may have been invented after the local ordinance was passed) are “vehicles” banned from the park. Another article I’ve used once as an introduction is Jonathan Zittrain, Without a Net, Legal Affairs, Jan.-Feb. 2006, which is an early version of the argument he makes in The Future of the Internet.

Chapter 4 of the Bellia/Berman/Post textbook on Cyberlaw starts out with a brief section on the effects of technological change on legal rules and then uses changes in surveillance technology as a kind of case study. It basically runs through the big 4th Amendment cases (Olmstead, Katz, Kyllo). It might be a bit more cursory than you’re looking for and doesn’t contain lots of analysis, but the progression from Olmstead to Katz is pretty stark and does a good job of illustrating the basic idea.

I think genetic science is the realm with the most complex and unclear legal issues right now. Here is an abstract and reference from Science a few years ago that highlights the ongoing issue, which I think has not come any closer to resolution.

Policy Forum
INTELLECTUAL PROPERTY:
Patents on Human Genes: An Analysis of Scope and Claims
Jordan Paradise, Lori Andrews, Timothy Holbrook
There is significant domestic and international opposition to gene patents based on the fact that gene patents deter medical research and health care, as well as the policy position that genes are an inherent product of nature. Yet, equally troubling is the fact that gene patents have been issued by the U.S. Patent & Trademark Office that are problematic with respect to existing federal patent law. The authors of this Policy Forum describe their study, which examined issued gene patents covering a variety of genetic diseases and described ways in which many claims fell short of USPTO patentability requirements.

Stuart Banner has a gem of a book, “Who Owns the Sky?,” that should be perfect for your needs. It deals with the seemingly disruptive effects of airplanes on property law. How could an airplane fly over someone’s land, without permission, given that property extended to the end of the atmosphere? Long story short, what looked like a fertile new field of law, brought on by a devastatingly new and disruptive technology, in the end didn’t emerge.

There’s less out there in the legal literature than you might think. I’m writing a book that touches on this question — I used the airplane as an example (the automobile is a great example too). I actually had not seen the Banner book and am looking forward to checking that out.